In terms of potential liability, a home inspector could be held accountable for breach of contract or negligence. To address breach of contract, it is necessary to consider whether the exclusion clause in the contract applies to the situation. If it does, the second issue is whether the clause was unconscionable or invalid at the time of the contract. If the clause is valid, the third issue is whether the court should refuse to enforce the exclusion clause based on public policy considerations.
For a claim of negligence, the plaintiffs need to prove, on a balance of probabilities, that the home inspector acted negligently and failed to meet the standard of care expected of a reasonably prudent home inspector in a similar situation. For example, home inspectors cannot solely rely on information provided in a multiple listing information sheet without verifying its accuracy.
The reasonableness of the reliance on the home inspector’s report is an important factor, and it should be proportionate to the cost of the inspection. Reports from home inspectors should be clear and unequivocal, especially when further inspection is necessary. Verbal statements made by the inspector should be treated with caution.
While the contract with the inspector may include limitation clauses, case law has shown that these clauses may not absolve home inspectors of liability arising from negligent home inspections. The exclusion clause may not apply if there is equal bargaining power, if clients were fully aware of the contract’s contents, and they were not rushed to sign it. Moreover, if a home inspector’s incompetence or recklessness regarding major structural components is evident, upholding the exclusion clause would be contrary to public policy.
It’s important to note that if latent material defects were not disclosed by the seller, you may have a claim for breach of contract against the seller.
This aspect falls outside the scope of services we provide, and it is advisable to consult with a litigation lawyer to explore your options further.
